Wright Surveillance v Paulsen NO and Others (P177/14) [2017] ZALCPE 1 (31 January 2017)

Wright Surveillance v Paulsen NO and Others (P177/14) [2017] ZALCPE 1 (31 January 2017)

The Labour Court found that while the applicant was justified in charging Funde with misconduct for absenteeism, the Commissioner’s award was not reasonable as it relied on factors not supported by evidence and shifted the onus improperly. The court held that the dismissal was substantively unfair only in relation to the sanction, as the employer was aware of Funde’s bereavement and a dismissal was harsh under the circumstances. Procedural fairness was upheld, as Funde was aware of the disciplinary proceedings and failed to attend or request a postponement. The compensation awarded by the Commissioner was excessive and not just and equitable; the court substituted it with compensation...

Citation
[2017] ZALCPE 1
Parties
Applicant: Wright Surveillance; Respondent: Paulsen, N N.O.; Respondent: Commission for Conciliation Mediation and Arbitration; Respondent: SATAWU obo Nomvuso Funde
Court
Labour Court Port Elizabeth
Jurisdiction
South Africa
Judgment Date
31 January 2017
Case Number
P177/14
Procedural Posture
Review Application / Judgment on Review of Arbitration Award
Outcome
Arbitration award reviewed and set aside; substituted with finding of procedural fairness and substantive unfairness only as to sanction; compensation reduced to three months’ salary; no order as to costs.
Judges
Tlhotlhalemaje
Legal Topics
Unfair Dismissal, Review of Arbitration Award, Procedural Fairness, Compensation, Disciplinary Code
Labour Law Civil Procedure Unfair Dismissal Review of Arbitration Award Procedural Fairness Compensation Disciplinary Code

Case Brief

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Parties

Wright Surveillance

Applicant

Paulsen, N N.O.

Respondent

Commission for Conciliation Mediation and Arbitration

Respondent

SATAWU obo Nomvuso Funde

Respondent

Procedural Posture

Review Application / Judgment on Review of Arbitration Award

Legal Issues

  1. 1 Whether the arbitration award issued by the Commissioner was reasonable and justifiable in law and fact.
  2. 2 Whether the dismissal of Ms. Nomvuso Funde was substantively and procedurally fair.
  3. 3 Whether the compensation awarded was just and equitable in the circumstances.

Ratio Decidendi

The Labour Court found that while the applicant was justified in charging Funde with misconduct for absenteeism, the Commissioner’s award was not reasonable as it relied on factors not supported by evidence and shifted the onus improperly. The court held that the dismissal was substantively unfair only in relation to the sanction, as the employer was aware of Funde’s bereavement and a dismissal was harsh under the circumstances. Procedural fairness was upheld, as Funde was aware of the disciplinary proceedings and failed to attend or request a postponement. The compensation awarded by the Commissioner was excessive and not just and equitable; the court substituted it with compensation...

Court Disposition

Arbitration award reviewed and set aside; substituted with finding of procedural fairness and substantive unfairness only as to sanction; compensation reduced to three months’ salary; no order as to costs.

Orders

  • The arbitration award issued by the First Respondent under case number ECPE5352-13 is reviewed, set aside and substituted with the following order: The dismissal of Ms. Nomvuso Funde was procedurally fair, and substantively unfair only in regards to the issue of sanction.
  • The Applicant, Wright Surveillance, is ordered to pay to Ms. Funde compensation in the amount of three months’ salary calculated at her rate of pay as at 10 October 2013.